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November 2010

About This Issue

This year’s elections were once again marked by widespread concern about the role of money in our political system. Regulations on how, when, and by whom money can be spent are perennially popular, but just as often they encounter legal obstacles stemming from the First Amendment’s protections on speech and the right of petition. Money also shows a frustrating tendency to flow around regulations, frustrating their enactors’ intent.

A key problem is how to balance several conflicting goals: holding a clean, and clean appearing election; allowing all citizens to participate in campaigns as they think best; allowing citizens to know who supports or opposes various candidates and proposals; and guaranteeing the personal safety of those who choose to participate in the process.

This month, lead essayist Bruce Cain makes the case for semi-disclosure of campaign-related spending. Under semi-disclosure, the public would have access to aggregate spending data for groups, as well as data about individual donors, albeit stripped of personal identification data. Semi-disclosure might work a lot like the census, in which data is made available, but privacy is still protected.

Will Cain’s proposed compromise work? Will it satisfy all sides in the debate? To find out, we’ve invited a panel of experts. Over the next week and a half, election law scholar Rick Hasen, the Cato Institute’s John Samples, and Common Cause’s Nikki Willoughby will each give us their thoughts on the future of campaign finance regulation, either with or without semi-disclosure.

Lead Essay

Shade from the Glare: The Case for Semi-Disclosure

Disclosure, normally the most widely embraced element of election regulation, became highly controversial in 2010. On the eve of the mid-term elections, a Washington Post editorial declared that while money might not determine the outcome, they did not think that nonprofits spending “heavily” and “keeping their donors secret is a healthy development for democracy.” When Republicans questioned the nondisclosure of many small anonymous contributions to Democratic candidate Barack Obama in 2008, their complaints were largely ignored by the press and reform community. By contrast, the rise of the so-called nonprofit super-PACs has set off a firestorm of good government indignation.

Quicker to realize the tactical potential of recent Supreme Court decisions (i.e. that corporations and trade unions were now free to transfer large sums of undisclosed money from their treasuries into nonprofit organizations to spend on newly redefined electioneering ads), conservatives funneled funds through nonprofit organizations like the Chamber of Commerce (approximately $34 million) and the American Action Network (approximately $21 million) to fund “electioneering communications” against Democratic opponents in targeted Congressional races. To put this development in perspective, electioneering communications (ads that avoid express advocacy but can discuss issues and candidates close to an election) will likely be only a third or less of all non-party independent spending and will still be dwarfed by the nearly $4 billion in total spending when the final tallies are completed.

While Democrats raised a comparable level of total money and ran just as many negative ads, the Republicans utilized the nonprofit tactic more frequently. The same option was open to the Democrats, of course, but they relied more heavily on fully disclosed PAC and individual contributions to candidates and party committees, and on disclosed contributions for independent expenditures rather than using nondisclosed electioneering communications. The reform community fully understood the potential political opportunity created by recent Court decisions at the time they were decided, but their attempts to close that hole (in particular the DISCLOSE Act) faltered in the Senate, leaving a clear path for the super-PAC to emerge.

At the same time, recent developments have caused others to question whether protections for individual contributors are strong enough. The web’s capacity to widely and instantaneously publicize personal information and the willingness of groups to deploy this information as a political weapon raises serious questions about whether a citizen’s right to make choices free from harassment and threat will be compromised in the future, unless steps are taken to enhance protections. In particular, the Prop 8 trial in California and the Doe v Reed case in Washington brought allegations that citizens who signed petitions or who have money in support of preventing gay marriage were subjected to intimidation and threats by opponents making use of disclosed information. Curiously, we make voting anonymous in order to protect the autonomy of individual choice, but donations above very minimal levels, and acts of normal citizenship such as signing petitions, are often publicly disclosed, even though both are clearly protected First Amendment political actions. What is the principle that gives anonymity to one fundamental political right but not another? And if there was a rational basis to this distinction in the past, has it been undermined by radical changes in the information environment?

In the end, it seems clear that we need to be more careful about protecting individual choice in the exercise of all First Amendment rights, not just voting. This requires a closer examination of the goals we are pursuing, and in the true spirit of First Amendment jurisprudence, adopting a narrower tailoring of disclosure practices in order to protect individual autonomy. In particular, we should consider the option of semi-disclosure: that is, the full reporting but only partial disclosure of campaign donor information. Full reporting would serve the purposes of preventing corruption and promoting enforcement, while partial disclosure gives voters the information they need to make choices while protecting individual identities. It may also be a mistake to use disclosure and disclaimer requirements to discourage activity that cannot be prohibited under the Supreme Court’s interpretation of the First Amendment.

The New Disclosure Problem

Disclosure requirements for Congressional candidates and committees have been in place and gradually extended in scope and enforcement rigor since 1910. The current law requires candidates and committees to report contributions and expenditures to the Federal Election Commission, and for information about donors to be made publicly available if donations surpass a minimal level. Individuals and groups that engage in independent expenditures expressly advocating for or against candidates are not subject to contribution or expenditure limits, but are required to report and allow the disclosure of contributors.

The upshot is a significant amount of reporting for candidates, committees, and citizens who wish to participate in elections. Moreover, there are potential financial and legal consequences for both unintentional and intentional reporting violations. At the federal level, these tasks are usually delegated by the candidates to experienced treasurers, professional accountants, and other staff, because mistakes can be costly. But this professionalization of course contributes to the growth of election costs. The Court in reviewing this process has acknowledged that reporting is a burden on time and privacy, but has generally supported reporting and disclosure because the benefits seemed to outweigh the costs. With the rise of electronic reporting, the burden has been eased somewhat. Act Blue, for instance, make it possible for donors to report their required information online (e.g. address, occupation, date of contribution) and transfer funds at the same time. The FEC and their state equivalents also provide helpful websites, FAQs and interactive assistance for those who are in doubt about what they need to do. The contribution and expenditure information is disclosed both in the FEC website but also increasingly by nonprofit groups such as Opensecrets.org.

When the Supreme Court took up disclosure in Buckley v. Valeo, its primary concern was small, fringe groups espousing potentially unpopular non-mainstream views. The new disclosure problem reflects both the greater openness of the Internet and the more polarized politics in America. To put it in more concrete terms, the names of people who make perfectly legal and limited contributions to candidates of choice can be posted on the Internet, exposing them to organized or random acts of harassment, economic punishment, or even violence.

But what does the state get in return? As long as direct contributions are limited (e.g. to less the $2,400), there is no serious threat of quid pro quo corruption. One might have a stronger case with unlimited independent contributions or expenditures, but even so, if the information is reported in a complete and timely fashion, the government has what it needs to move forward with a corruption charge. Nor does exposing the identity of donors really assist enforcement. It is true that the FEC and their state counterparts rely heavily on reports of likely infractions from opposition parties, committees and candidates, but crowdsourcing often leads to exaggeration and unsubstantiated charges that are mainly used as campaign fodder. It would be better to rely more heavily on auditing by professional staff and to enhance agency resources. In any event, enforcement would be far more effective if we assigned individuals unique donor numbers for reporting purposes (just like a Social Security number or taxpayer ID) that would apply to all contributions and expenditures at any level rather than continuing to rely on the current system of releasing names and letting opposition researchers sift through the files for anomalies.

The strongest explicit, court-condoned argument for revealing donor identity is that it provides valuable voter information. Academic studies have shown that many voters rely on cues such as the source and amount of contributions from given sectors of the economy, political committees, regions, and the like to make inferences about the value and motives of competing candidates or initiative measures. While one could imagine the value in knowing that candidate Jones gets most of his money from oil companies, doctors, or the SEIU, there is little or no informational gain from knowing the specific names and home addresses of the company executives, doctors, or union members who make the contribution.

Perhaps because our disclosure rules were developed in less polarized and transparent times, we have never sufficiently distinguished between full reporting and semi-disclosure. But given the potential dangers of exposing the identities of people exercising fundamental political rights, it is a distinction we need to take more seriously. We already apply semi-disclosure in the release of census data, taking care to ensure that the income level or other sensitive personal information is aggregated at a level (tract, block, or block group) that protects individual privacy. It is odd and unacceptable that we do less for core political actions such as making contributions.

At the same time, with the loosened definition of electioneering communications, the ability to spend without reporting and semi-disclosing through exempt nonprofits has to end. No doubt some have chosen to invest in this route because it better protects privacy, but privacy could be preserved with semi-disclosure. Others are quite possibly purposely trying to keep relevant cue information from the voters whom they are trying to persuade, but that cannot be an acceptable reason to maintain the status quo with respect to nonprofit disclosure exemptions.

In any event, anonymity is neither the most valuable feature of the super-PACs nor the most important reason for their growth. Like the party soft money in the 90s, super-PACs offer a flexible way to raise and transfer large amounts of money to key areas and states within an election cycle. Just as presidential elections have come to focus primarily on a small number of swing states, midterm Congressional strategies focus increasingly on the toss-up seats, with money ebbing and flowing in a targeted way as the prospects for winning in particular seats changes during the campaign. Candidates generally prefer to control their own campaign spending and message development themselves, and their consultants want to reap the fees associated with campaign spending (especially media buys). However, the “hard money” system of candidate contributions that they prefer is woefully inefficient by comparison with soft money despite the capacity for transfers between candidates, because too much money inevitably ends up in safe or uncontested seats. Independent spending will continue to thrive for efficiency reasons even without offering anonymity.

While some reform is needed in the form of semi-disclosure to assist voters make decisions, other aspects of the new disclosure agenda as revealed by the DISCLOSE Act are more problematic. Disclosure requirements linked to threshold independent spending levels and disclaimer provisions have an implicit motive that reaches beyond enforcement, voter education, and preventing corruption, namely discouraging large contributions and expenditures. Public disclosure and disclaimer, in other words, is tied to an equity goal that the Supreme Court has ruled out as a legitimate reason for limiting contributions. The implicit agenda works as follows: by identifying the names of big donors who spend independently, or by forcing big donors or the executives of companies that pay for electioneering communications to put disclaimers on the ads that they fund, public disapproval will be focused on them, and this will discourage them from undertaking expensive independent actions.

This might indeed work in some cases, but it raises two problems. First, it unleashes a form of “public pressure” on these individuals who are exercising legal fundamental rights. In other words, it diminishes individual autonomy. Secondly, it does so for a purpose that the Supreme Court has not approved of — equality of speech. Since Buckley, the Court has been very explicit in opposing the goal of equalizing voices through contribution or expenditure limits. Attempting to discourage large independent expenditures and electioneering through total disclosure and disclaimers is effect a “soft” limitation (i.e. relying on informal constraints like public pressure or shame) as opposed to a hard or legal limitation. It might not be as effective, but it is likely to have some impact. But if hard limits for the sake of equality of voice are not permissible, why would soft limits be acceptable?

The reform community’s rationale is clear. The cases Federal Election Commission v. Wisconsin Right to Life and Citizens United v. Federal Election Commission blew a substantial hole in the McCain-Feingold approach to soft money, allowing a broader category of electioneering communications to be paid for out of corporate and trade union treasuries. The almost exponential growth of both super-PAC and conventional independent spending in 2010 as compared to the mid-term in 2006 looks eerily like the rapid growth of party soft money in the nineties — the very problem McCain-Feingold was meant to patch. Because the Republicans were the quickest to exploit this and had the more favorable political winds behind them in 2010, the Democrats have been and will continue to be the most vocal critics of this development.

Critics of McCain-Feingold predicted that this would happen when the bill was being considered, but the reform proponents turned a deaf ear, reasoning that they would address one problem at a time. But now the inevitable has happened — more flexible, efficient, independent soft money spending has found another avenue that will be almost impossible to shut off. In the wake of the Court decisions that have further enabled this process, it is only natural that reformers would want to find a way to gain back what has been lost in the battle against soft money. But using transparency as a weapon to combat inequality of voice is a dangerous game to play. It promotes forms of disclosure that are not narrowly tailored and invites closer Court scrutiny of disclosure laws. It is wiser to give voters the information they really need to make informed choices rather than extend disclosure’s reach into realms that have been clearly rejected by the Court.

Response Essays

The Costs of Mandating Disclosure

The composer Benjamin Britten once said that there “are a few composers, a very few, when I hear a work I do not like, I am convinced that it is my own fault. Verdi is one of those composers.” I feel the same about the political scientist Bruce Cain, mutatis mutandis.[1] Were I to disagree much with a Cain article on campaign finance, I would think I was in error. His essay here urges us to revisit our assumptions about disclosure. In that spirit, let me pose some questions about the hitherto unquestioned value of mandating disclosure.

Let me begin by suggesting how libertarians — or others who accord substantial weight to freedom from coercion — might think about disclosure. A person wishes to give money to support a candidate for office (or a party). The candidate (or party) accepts the contribution. For those who do not voluntarily disclose the action, what could justify government mandating disclosure?

Professor Cain mentions two rationales for such coercion: preventing corruption and informing voters. Cain argues that current contribution limits are enough to prevent corruption. Until now many libertarians argued such limits should be loosened or eliminated. Disclosure would then bear the full weight of preventing corruption. Such limits might then still be liberalized, but eliminating them now seems less relevant.

The Citizens United decision invalidated a ban on electoral speech paid for by groups taking the corporate form. The recent decision in SpeechNow.org vs. Federal Election Commission indicates that individuals in association may spend as much as they wish advocating the election or defeat of a candidate. Consider an example that follows from these two decisions. A donor gives money to (say) Karl Rove, who then gives it to a broadcaster. Candidates and their parties are not involved and cannot be corrupted. If Rove is to be forced to disclose these activities, it cannot be to prevent corruption.

Mandated disclosure will be the regulation of choice for these new ways of funding speech. This regulation will be constitutionally justified as a way of informing voters. The courts have generally concluded that the benefits of such information outweigh the costs of disclosure. Do they?

Americans know little about government and public policy. How then can voters cast a ballot that reflects their interests and ideals? It is thought that disclosed information about donations helps voters with this task. For example, a voter on the left might learn from a disclosure that unions supported a candidate; that information provides a shortcut for the voter to support that candidate.

The voter education rationale seems paternalistic: the government is trying to prevent you from hurting yourself by voting for a candidate who opposes your interests. To achieve that, the government forces others to reveal information about their political activities. In short, government mandates disclosure to provide benefits to voters who refuse to fulfill the responsibilities of citizenship. Partisans of disclosure see it as an unalloyed good. The truth is less pleasing. Mandated disclosure both reflects and fosters the decline of self-government in the United States. The American framers thought a republic demanded much from citizens. We seem happy to demand very little.

For much of the past four decades — roughly the era of modern campaign finance regulation — most people assumed the information provided to voters by mandated disclosure came at little or no cost to First Amendment rights. The continual demonization of money in politics, and its contributors, nourished that assumption. The cant phrase “it’s only disclosure” suggested such mandates were both costless and a minimal starting point for the regulation of money in politics. Disclosure was the least we could do given that those who engaged in private financing of campaigns were involved in a shady practice.

Professor Cain’s essay suggests why people assume mandated disclosure has few consequences for free speech and association. These days people passionately engaged in political struggle recognize fewer restraints in pursuit of victory than in the past. Disclosure enables partisans to raise the cost of political participation through political abuse and economic harms; a higher price, of course, leads to a lower quantity in the familiar downward sloping demand curve. (Justice Thomas’ opinion in Citizens United provides details about the threats and harassment facilitated by disclosure in ballot initiatives).

The costs of mandated disclosure are probably higher than we know. After all, the costs of non-participation do not manifest themselves; disclosure leads citizens to decide not to do something. Thus the effects of disclosure often will not leave data behind to be measured and analyzed. We are left with reports like George Soros’ comment that a few contributors stayed on the sidelines in 2004 because of disclosure. Such stories should give us pause. Donors solicited by Soros in 2004 would be fostering a challenge to a sitting president. If that president were re-elected, he would know who funded his opposition. Most presidents, recalling the fate of Richard Nixon, would probably refrain from going after their enemies. But who knows? The same could be said of senators and representatives. Yes, those who can stand the heat stay in the kitchen, to paraphrase Harry Truman. But how many people stayed out of, or left the kitchen because mandated disclosure raised the temperature by several degrees?

Mandated disclosure imposes another, more subtle cost on American politics. It directs public attention toward the sources of funding for speech and away from the content of speech, apart from its conclusion to “vote for” or “vote against” a candidate. The voter is asked to endorse or reject the putative interests of the funder rather than assess the content of the relevant political speech. This tendency sits uneasily in a nation whose constitutional doctrines all but automatically invalidate content-based restrictions on speech. Why do we care so much about the content of speech? It is essential to persuading others and thus to a government based on argument and consent. By depreciating the content of speech in favor of the putative interests of funders, mandated disclosure moves us away from that ideal of popular government. That change, subtle and “realistic” as it is, should also count as a cost of disclosure.

Professor Cain proposes to sustain the benefits of disclosure while lowering its costs. Voters would learn which interests, but not which individuals, supported a particular instance of political speech. Who would decide how to present contribution and independent expenditure information to voters? The relevant authority would have to decide, for example, whether some contributions were “labor union backed” or “supported by the friends of working families.” Many such decisions would be necessary. Perhaps neutral categories would be used, but there is reason to be skeptical. Votes and hence power would be in the balance. Moreover, public opinion research tells us that small changes in wording can affect responses from citizens.

Professor Cain also proposes that the government would collect detailed information about spending but not disclose it. Auditors would oversee adherence to contribution limits in the relevant cases and presumably refer accusations of corruption to the Department of Justice. Would such information be used for political retribution? Or would it be like tax data, occasionally abused as in the Nixon administration, but generally not a weapon in political battles? If these questions can be answered, Professor Cain’s proposal offers an improvement over the status quo.

That said, I wonder if Professor Cain’s proposal might lack friends in Congress. Last year the majority in the House of Representatives proposed a DISCLOSE Act that manifestly sought to discourage electoral spending by putative allies of the minority. For Professor Cain, discouraging speech is bug in a bill; for partisan majorities it may be a feature. It is possible, however, that the difficulty of discouraging speech through disclosure may open the door for a proposal like Cain’s, one that attends to the costs as well as the modest and questionable benefits of disclosure.

[1] Cain may well be the Verdi of American political science. I am not its Britten.

DISCLOSE Act Is an Opening, Not a Barrier

The DISCLOSE Act, in plain language, advocates that the American voters should know where the money in their elections comes from.

Anyone who has a problem with that probably has something to hide.

Yes, good government groups like Common Cause are indignant about the $430+ million (and counting) in funding that so-called “independent” groups poured into the 2010 elections — and you should be, too. It’s your representation that was sold to the highest bidder, and it’s the purchasers’ interests that will prevail over your own. We know how much this election cost, and now we want to know who was buying.

Although the Supreme Court opened the floodgates for corporate cash by ruling that campaign donations are the equivalent of free speech (Citizens United), it also has affirmed at least twice that disclosure is necessary. As articulated in Doe v. Reed, “disclosure…does not as a general matter violate the First Amendment” and “the State’s interest in preserving the integrity of the electoral process suffices” to defeat the idea that free speech should be anonymous speech.

Even in the Citizens United case, Justice Anthony Kennedy stated, and seven of his fellow justices concurred, that “The First Amendment protects political speech; and disclosure permits citizens and shareholders to react to the speech of corporate entities in a proper way.” This transparency enables the electorate to make informed decisions and give proper weight to different speakers and messages.”

Without disclosure, Americans don’t get to make those informed decisions, and special interest influence on candidates and elected officials isn’t measurable. Money may or may not be speech, but knowledge absolutely is power. Denying voters access to the information we deserve isn’t free speech, it’s subterfuge.

The consequences of free speech can be significant. Some people won’t like what you say and will boycott your business or call you terrible names. That’s uncomfortable, but that’s democracy. The opposite of democracy is denying the people their right to respond through speech or action.

Look, I’m sorry if candidates, corporations, and independent groups find it onerous to report the sources of the funds they are using to run for office, influence nominations and elections, and manipulate public opinion. But we the voters find it onerous to try and figure out what they’re about, what they stand for, and who’s paying for their speech without the benefit of the whole story. And we find it suspicious that they want to hide it.

During oral arguments in Doe, Justice Antonin Scalia rightly acknowledged that “requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed.” Doomed, indeed, if such acts can be, in Scalia’s opinion, “hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.”

The DISCLOSE Act, as it stands now, would require corporations and nonprofits involved in political campaigning to disclose the identity of their top donors. It would also bar foreign corporations, government contractors, and TARP recipients from making political expenditures.

And DISCLOSE would require political spenders to publicly stand by their ads, just as candidates for Congress do. In fact, the company CEO or highest-ranking official would have to appear on camera, saying “I approve of this message.” If a company can’t stomach that kind of public statement, for fear of consumer reaction or perceptions of conflict of interest, they can make a business and economic decision to abstain from such funding. That decisionmaking process is their act of free speech. And it’s only fair to give voters a decisionmaking tool: disclosure.

Partial disclosure does not go far enough to establish accountability for the free speech that the Citizens United decision granted. Nor does it serve as an instrument to promote the public interest. The First Amendment does not protect anyone from criticism, and free speech is not absolute. As Americans, we’ve agreed that some speech is too costly to be considered free. Slander and libel, speech that infringes on copyright, speech that threatens or harasses other people or poses an imminent danger of violence are all punishable. Why shouldn’t speech that poses an imminent threat to our democracy also be regulated?

Secret campaign donations don’t deserve the protections that Citizens United has afforded them, but if money equals speech (and the Supreme Court says it does), then money has the same limitations as speech. If citizens should be responsible for the positions they have taken, so should corporations, committees, and nonprofits who play in the political sandbox.

(At this point, I must insist that money should not equal speech. Money purchases methods of speech — media ads and the like — that are the outlets of free speech. But the exchange of money always has and always will define commerce, not speech.)

It’s not disclosure that disenfranchises voters, leading them to do nothing. It’s lack of disclosure, secrecy in the system of government we ought to be able to trust. We are shut out of the system by concealment and assurances that our best interests are at heart. But we cannot rely on individuals and groups inside the Beltway to tell the whole story, especially about their agendas, which we aren’t privy to. And we can’t just take their word for it when independent groups say they’re not colluding with campaigns. Give us the data and let us draw our own conclusions.

Suggesting that disclosure takes public attention away from campaign content is at odds with the premise of money as speech, which the secret money donors hold as their very foundation. If money is speech, then we have a right to hear it. If focusing on the money distracts from the speech, then the money isn’t the speech, is it?

Campaign donors can still have their rights without infringing on ours. Is the influence, access, or power they gain worth the potential public protest? That’s for each donor to decide. And whether to engage in protest against them is for us to decide. But the equation must be balanced.

Leaving aside whether money is speech and whether speech is free for a moment, I turn to Common Cause founder John W. Gardner, who said, “America’s greatness has been the greatness of a free people who shared certain moral commitments. Freedom without moral commitment is aimless and promptly self-destructive.” Who can deny that we have a shared moral commitment to ensure the integrity of our elections and system of government, the things that make us free in the first place? Political players have their freedom of speech and we’ll have our freedom of information, and together we’ll all have democracy. Without both, we invite self-destruction.

The DISCLOSE Act isn’t perfect, but the alternative — secret money, unidentified sources, unparalleled spending without any accountability — is an abomination. Until the real solution is before us — the Fair Elections Now Act just might be it — we can’t turn up our noses at the only current legislation that protects and informs the very people with the most at stake in elections: American citizens.

A Semi-Objection to Bruce Cain’s Semi-Case for Semi-Disclosure

Bruce Cain has picked an odd time to raise concerns about the dangers of disclosure. It comes as we have just completed a record-breaking $4 billion midterm election season, after the Supreme Court, lower courts, and the Federal Election Commission have freed corporate and union money from longstanding campaign finance limits, and after political committees and other political groups have found ways to avoid effective disclosure of their contributors. The conversation should be about why we need more disclosure, not less, and why it is that Congress is unlikely to restore effective disclosure laws in time for the 2012 elections.

Cain’s concern is different: he worries that excessive disclosure, especially in the Internet era, will chill political speech, and that attempts to reimpose effective disclosure laws are motivated by an improper desire to equalize the amount of political speech. He calls for a system of “semi-disclosure,” whereby certain campaign finance data is disclosed to campaign finance regulators but not to the general public. In this brief response, I make three points. First, in offering his analysis, Cain understates the value of disclosure. Second, Cain is surely right that the Internet era does change the constitutional calculus, which is why scholars supporting campaign finance regulation, including Richard Briffault and me, also support the kind of system Cain suggests. Third, the most significant roadblock to Cain’s suggested reform, as shown by John Samples’s response in this symposium, is the fear by conservatives of government audits as a substitute enforcement mechanism.

The Benefits of Disclosure Laws

Briefly, as I have recently explained, disclosure laws serve three important social interests. First, disclosure laws can prevent corruption and the appearance of corruption. Second, disclosure laws provide valuable information to voters. Third, disclosure laws help enforce other campaign finance laws.

I don’t read Cain’s essay as rejecting the point that we need to restore effective disclosure laws to provide voters with valuable information. He recognizes that busy voters rely on a cue, such as whether a ballot measure or candidate is supported by the oil industry or the Sierra Club, to make informed decisions about how to vote. He believes, however, that aggregate data provided by the government can provide the information for the cue. He writes: “While one could imagine the value in knowing that candidate Jones gets most of his money from oil companies, doctors, or the SEIU, there is little or no informational gain from knowing the specific names and home addresses of the company executives, doctors, or union members who make the contribution.”

The problem with this analysis is that it relies upon the government to aggregate these data. Right now, the only contributor information provided to the Federal Election Commission comes in the form of the name, address, occupation, employer, and amount contributed by those contributing at least $200 to a committee. Unless the government requires additional information, such as union membership, the cue is going to be of only limited usefulness. Today, in contrast rival campaigns, the media, and members of the public can slice and dice the data however they want, including matching the public data with other databases, to get reliable analysis.

More importantly, Cain undersells the anticorruption and enforcement rationales for campaign finance disclosure. Cain believes that campaigns raise spurious and exaggerated charges of corruption, and that the $2,400 individual contribution limitation to a campaign assures that no candidate can be corrupted by such paltry figures. Cain is still thinking in a pre-Citizens United world of unlimited contributions to independent expenditure committees. In a world of secret contributions, I could give $1 million to Americans for America to be used solely to support my favorite member of Congress. The law does not prohibit the contributor from disclosing the contribution to her favorite member of Congress, but all the public would know is that Americans for America spent $1 million on the ads. We need to have rival campaigns, the press, and the public out there, more than ever, as watchdogs to make sure that the member of Congress has not done something in exchange for the contributor’s money. In short, in a world of unlimited contributions to committees to benefit candidates, disclosure is the only (albeit imperfect) anticorruption tool.

The same point applies to enforcement. One way to police that campaigns are not taking illegal contributions (such as contributions from foreign non-residents) is to place the information in the public sphere and allow competitors and others to view it. In the last presidential election, that’s exactly what happened, and it helped keep campaigns honest.

Note that these arguments do not depend one whit on any equality rationale to support disclosure, or any attempt to discourage speech. Though Cain talks about a “clear,” “implicit agenda” on the part of reformers to discourage speech, he should not paint with so broad a brush; it is certainly not my agenda. (I’d note too that I called for the ability to audit the Obama campaign to make sure there was not a problem with accepting small foreign contributions, belying Cain’s point that reformers did not raise issues about disclosure until Republicans were the ones not doing the disclosing.)

The Costs of Disclosure

Though Cain is wrong in understating the benefits of disclosure, he is right that

disclosure can come at a cost, especially in the Internet era. As I recently explained,

No longer is it necessary to trudge down to a government office to wade through disclosure reports. With a Web site like Fundrace, you can plug in your home address (or any address) and see to whom (and how much) your neighbors have donated in federal races. Same-sex marriage advocates created Eightmaps to find Californians who donated to ‘Yes on 8,’ as in Proposition 8, the ballot measure outlawing gay unions.

There certainly have been allegations of harassment of small contributors to controversial campaigns, but many of these remain unproven, minor, or not really harassment. But the Supreme Court has developed a more pinpointed way to deal with this problem: allowing for those who can show they are likely to face harassment for having their identities disclosed to obtain an “as-applied” exemption from the law.

Even with this exemption, it does make sense to raise the threshold for reporting individual contributions because there is little social benefit in public disclosure of the names of these contributors. But this is an idea on which reformers and Cain agree.

Noted campaign finance scholar Richard Briffault has called for greater use of reporting to government agencies and less use of public disclosure as to small contributors. I endorsed that view as well during the 2008 campaign, when there were questions raised as to foreign contributions to the Obama campaign: I suggested that instead of public disclosure of small contributors, campaigns should face audits, an idea to which I now turn.

The Pushback on Audits

Cain too advocates audits as better than public disclosure of much contributor data. For reasons I’ve explained above, I don’t think audits could substitute for disclosure of all campaign finance data, but I do support such audits to deal with the problems of small contributors and those who would face harassment.

But a call for audits, as I learned, is quickly met with resistance from conservatives. John Samples suggests that audits could become tools for political retribution, and when I pushed for audits of the 2008 Obama campaign, a commissioner of the Federal Election Commission expressed concern that any data coming into the agency could be subject to a Freedom of Information Act request.

Whether concerns about abuses of the audit process are legitimate or not, fear of audits would be a talking point against Cain’s argument for semi-disclosure. I fear that Cain’s proposal would morph into semi-semi-disclosure, whereby the information would be sent to the government, with no public disclosure and no ability to audit. It will further lead us into the brave new world of campaign finance deregulation.

The Conversation

Speech for Me, but Not for Thee?

Unlike Bruce Cain and Richard Hasen, Nikki Willoughby does not offer a serious exploration of campaign finance issues. Instead she offers what amounts to a rant, heavy on “us vs. them” and light on analysis and knowledge of constitutional doctrine. Nonetheless, her essay merits close attention.

Consider first Willoughby’s proposition that “Anyone who has a problem [with mandating disclosure of independent expenditures] probably has something to hide.”

I wonder what Willoughby thinks about the Fifth Amendment’s protection against self-incrimination or the constitutional premise that a person is considered innocent until proven guilty. Not much, apparently.

Then we are told that “good government groups like Common Cause are indignant.” Many campaign finance “reformers” focus on people’s motives rather than the content of their speech. “Reformers” have pure motives (they belong to “good government” groups like Common Cause) while anyone who disagrees with them has bad motives (no doubt they belong to bad government groups). Ascribing malign motives to anyone who disagrees suggests there can be no legitimate disagreement with the “reform agenda.” Disagreement, after all, is just a cover for corruption and probable criminal activity. I mean, really, why tolerate the enemies of democracy?

This kind of argument commits the genetic fallacy, the idea that we can conclude the truth of a statement by knowing its origins. It is the same fallacy that in part rationalizes mandated disclosure: if we know who paid for an ad, we know whether it is in the public interest (good!) or private interest (bad!).

Apart from fallacious reasoning, Willoughby’s claim is clearly false. Many people have problems with mandated disclosure because of its consequences for them or for freedom of speech. Demonizing the motives of those who disagree does not change that fact. Of course, those who worry about the consequences of disclosure may be wrong. But that is an assertion about the content of their speech, not about its origins.

We are then told that the most recent election “was sold to the highest bidder, and it’s the purchasers’ interests that will prevail over your own.” Willoughby offers no evidence for this assertion; she seems unaware that evidence might be needed. Of course, if you have strong prior beliefs that the world works in one way or another, you don’t need evidence for your assertions. I might add that over the years many political scientists have tried to document the influence of money on politics and do not have much to show for it (independent expenditures have not been as extensively studied). Perhaps some updating of the Common Cause worldview would be order. But no, the “reformers’” faith that money determines all remains as strong as it was in John Gardner’s time.

This selling to the highest bidder business also prompted a question for me. The 2008 election was marked by unprecedented fundraising and spending, not least by the current president, the greatest fundraiser in American history. Would Willoughby agree that the Obama administration’s agenda and activities were “sold to the highest bidder?” If not, why not? Does money only corrupt elections when Republicans and conservatives do well? If so, isn’t “campaign finance reform” just a stalking horse for partisan (Democratic) and ideological (liberal) interests?

Willoughby tells us that Citizens United means “that campaign donations are the equivalent of free speech.” She may know that Citizens United did not concern campaign donations. It concerned spending on speech by organizations taking the corporate form. In other words, money translated directly into speech, and the question was whether Congress had the power to prohibit such spending (and thus, such speech). The Court concluded the First Amendment precluded such prior restraint of speech.

Willoughby notes that the Court also approved of disclosure in Citizens United and other decisions. That is true, but it should not be taken to mean that the Court would approve the sort of punitive disclosure Willoughby may have in mind. The discussion of disclosure in Citizens United is muddled in light of earlier decisions. Overall, the Court seems to think that disclosure serves one set of purposes regarding contributions and a single purpose (voter education) regarding independent expenditures. Bruce Cain’s proposal on disclosure recognizes and builds on this distinction.

Richard Hasen notes that he has no wish to prevent the speech of others. At best, Willoughby is indifferent toward the speech of others. At several places, she says that if mandating disclosure chills speech, so what? The First Amendment, as Anthony Lewis’s recent book reminds us, requires “freedom for the thought that we hate.” Willoughby’s indifference to silencing those with whom she disagrees undermines the cultural foundation of the First Amendment.

Consider also her statement that “as Americans, we’ve agreed that some speech is too costly to be considered free. Slander, libel, and speech that poses an imminent danger of violence are all punishable. Why shouldn’t speech that poses an imminent threat to our democracy also be regulated?”

Willoughby also indicates another means to the same end. If, as she asserts, the money that funds speech is commerce, campaign finance regulations implicate not the First Amendment but rather the Commerce Clause of Article I. Under the latter clause, the Court has granted Congress plenary power to regulate commerce. Hence, Congress’ power to regulate the money funding speech would also be plenary.

The Supreme Court has said that some forms of expression do not enjoy First Amendment protection: libel, incitement, child pornography, and obscenity may be punished or prohibited. Similarly, the Court said early in American history that regulation of commerce may include its prohibition. Willoughby suggests that speech funded by corporate organizations should also be exempt from First Amendment protections because it “poses an imminent threat to our democracy.” In a word, the government should be free to regulate political speech out of existence.

Think of examples of libel, incitement, and child porn. Now consider a recent example of corporate-funded speech sponsored by a group widely decried by activists. American Crossroads, a group affiliated with Karl Rove, funded an ad criticizing Chet Edwards, a Democratic Congressman from Texas. You can see the ad here. It argues that the stimulus failed, that millions are left unemployed (citing the unemployment rate in Texas) and that Edwards has supported massive new taxes, spending, and debt. The ad concludes: “Working for Obama doesn’t work for Texas.”

What does this political speech about Chet Edwards have in common with libel, incitement, and child porn? The arguments in the ad did pose an imminent threat to Chet Edwards’ political career; he lost in 2010 in part because of his partisan tie to an unpopular president. But how does the ad threaten “our democracy”? It makes a case against Chet Edwards. The voters can accept or reject that case. If the funding of such political speech is exempt from First Amendment protection, Congress may prohibit such speech by prohibiting its funding. Such censorship of political speech would be great for members of Congress who are criticized during a re-election campaign. It would not be so good for the rest of us.

Cato Unbound has shown the Janus face of “campaign finance reform.” Richard Hasen knows his subject, offers subtle analysis, and provokes thought in those who disagree with him. Willoughby denounces the enemy, who, being the enemy, has no rights any “reformer” is bound to respect. I suspect that Willoughby, not Hasen, will animate the campaign finance laws of the future. For that reason among others “campaign finance reform” remains a profound and enduring threat to the American republic.

Disclosure and Corruption Revisited

Thanks to all the commentators for taking the time to read and react to my proposal. As John and I mostly agree on this issue, and since Nikki Willoughby chose to ignore my arguments on the merits, I will pick on my good friend and colleague Richard Hasen. First, as to the timing of my ideas, there is nothing “odd” about urging new ways to think about disclosure given that the DISCLOSE Act will have to be substantially altered if it is going to have even a remote chance of passing in the newly reconstructed Congress. Richard characterizes my argument as looking for “less disclosure” when what is needed is “more,” but that is both imprecise and revealing at the same time. It is imprecise because I argue for fuller, timelier reporting to the FEC (including nonprofits doing electioneering ads), but for semi-disclosure of donor identity to enhance free speech protections: in short, it is both more and less. His remark is revealing because it reflects a belief (widespread in the election law community) that disclosure is the last tool left in the regulatory box to fix the soft money leak caused by both past and recent Supreme Court decisions.

Richard chose to ignore my arguments about why the battle against soft money is both futile and debatable on the merits. As he well knows, the constitutional path to independent spending was forged in Buckley v. Valeo, and many of us predicted that the parties would turn to outside groups when McCain-Feingold was adopted. In essence, Richard defends a politically inefficient hard money system that places large amounts of unneeded funds in the hands of risk averse incumbents who spend too much time raising money due to contribution limits rather than a system that allows political parties and affiliated groups to raise money more easily and spend it more strategically in the districts where it can do the most good. I have a hard time believing that the system he defends is any less corrupting than the soft money world I favor. In any event, there is no clear empirical evidence on this point.

On the matter of semi-disclosure, let me address a few objections. First, both Richard and John worry about aggregate categories. I certainly agree that political people would love categories like “greedy capitalist pig,” “selfish government workers,” or, more likely, subtler slants. But I would use the census or other standard government occupation categories. I do not see that an individual’s union membership adds much important information but whether a political committee is union affiliated does. If I am wrong, then add union membership. John believes that people should be making voting decisions based on more substantive information, and I agree, but many don’t, and I don’t want to make a paternalistic judgment about how voters should make up their minds.

Richard also thinks that revealing identity is an important anti-corruption tool. Where is the evidence of this? In the last election cycle the Kochs and the Tea Party groups were not looking for a particular governmental action that would make them a profit: they were looking to change government philosophy which might in the long run allow them to keep more of their income or profits. Not exactly altruistic to be sure, but is it corrupt?

At a deeper level, Richard, I believe, implicitly disputes the Supreme Court’s long held distinction between the corruption potential of independent expenditures versus contributions to candidates. How does electioneering corrupt if the Court says that independent expenditures cannot do so? And what is the line of reasoning that leads to quid pro quo corruption when electioneering speaks broadly of policy and not a tax break or subsidy for company x?

As for enforcement, what is it that we are enforcing? There can be no limits on independent expenditures. If we move to full reporting, there might be reporting violations, but it is pretty hard to hide the fact that you made a big buy in a highly visible race. The candidate who is attacked will know that he or she is being attacked and can report this to the FEC if they believe that the other side has not complied with reporting rules?

Professor Hasen denies it, and perhaps my generalization does not apply to him, but I believe that the true agenda is to prevent distortion (i.e. speech inequality based on unequal resources) using disclaimer and disclosure to discourage First Amendment activity. Since speech equality is not a recognized state purpose, the debate has been recast as preventing corruption, but it makes no sense when you examine the argument closely since limited contributions to candidates and unlimited independent expenditures by Supreme Court definition cannot corrupt.

Against all the uncertain gains in preventing corruption and helping enforcement, there is a growing potential to undermine basic individual political rights. Semi-disclosure better preserves individual autonomy with little or no harm to enforcement and anti-corruption goals.

The Corruption-Disclosure Connection

Bruce Cain’s thoughtful recent post in this series on his semi-disclosure idea provides an opportunity for me to explain more fully the connection between disclosure rules and the prevention of corruption.

Let’s start with an easy case, and work our way toward Bruce’s example. In 1995, Jude Wanniski wrote a New York Times op-ed in which he called upon a change in federal law which would have allowed wealthy magazine owner Steve Forbes to fully bankroll a presidential campaign for Jack Kemp. Under then-existing law, Forbes could not give Kemp more than a thousand dollars in the primary and another thousand for the general election. Wanniski said that Kemp’s views were very similar to Forbes’s views, but that Kemp would be a stronger candidate and more likely to be elected. He saw no reason for the federal contribution limitation, although I defended the limitation on anticorruption grounds. (Forbes later ran for president but did not do well in the Republican primaries.)

Suppose Congress followed Wanniski and eliminated individual contribution limits. Or, somewhat more likely (though I think still unlikely), suppose the Supreme Court struck down the individual limitations on contributions to candidates. Would Bruce support full disclosure the next time a Forbes stands ready to contribute millions to elect a Kemp? Or, to get everyone’s partisan juices flowing, the next time a Soros stands ready to contribute millions to a Clinton, or a Murdoch to a Palin? I know that I would be strongly in favor of such disclosure. With this much money being contributed, the candidate would feel a great debt of gratitude, and there would be a temptation to give the bankroller some presidential or legislative favors. This is even more likely to occur on the congressional level, where a small number of large contributors could contribute a large percentage of donated funds to a candidate.

Disclosure is not as good a deterrent to prevent corruption in these circumstances contribution limitations would be, but in the absence of limits, disclosure is a lot better than nothing. Disclosure helps opponents, the press, and public ferret out corrupt actions undertaken by politicians for campaign donors.

Wanniski did not win that battle. Individuals still cannot bankroll presidential or congressional campaigns directly. But thanks to Citizens United, to developments in the lower courts and at the FEC, as well as inadequately drafted disclosure provisions in the Internal Revenue Code, it is now possible for individuals, corporations, labor unions, and other entities to make unlimited and undisclosed contributions to front groups which support or oppose candidates for office. As the law stands now, all that is disclosed is the spending by Americans for American Values, and not the real people with the money behind the ads.

Though the contribution information need not be disclosed to the public, nothing prevents the contributor or the front group from disclosing that information to candidates and party leaders. This independent spending therefore raises a similar potential for corruption as the Wanniski proposal did, and therefore the same argument for disclosure as a second-best anticorruption provision applies.

Bruce points out that in Citizens United the Court majority indeed said—without any evidence supporting the statement in the record or in the Court’s opinion—that independent spending cannot corrupt candidates. I’ve explained my disagreement with this statement at length elsewhere, and don’t view the unsupported statement as either a constitutional barrier or a good policy argument against mandating disclosure of large contributions funding such ads. I also note that the Citizens United majority seemed to recognize that corruption could still be a problem with independent expenditures: “If elected officials succumb to improper influences from independent expenditures; if they surrender their best judgment; and if they put expediency before principle, then surely there is cause for concern. We must give weight to attempts by Congress to seek to dispel either the appearance or the reality of these influences. The remedies enacted by law, however, must comply with the First Amendment; and, it is our law and our tradition that more speech, not less, is the governing rule.”

Bruce sees the Koch brothers as pursuing an electoral strategy rather than a legislative strategy and therefore sees no danger of corruption. Whether or not this is true as to the Koch brothers, there are many contributors to front groups pursuing a legislative strategy. So when an industry secretly backs a candidate through a front group, I expect industry leaders to be calling and to get a welcome reception after the election.

Restoring party soft money, as Bruce suggests, presents something of a mixed bag on the anticorruption front. Assuming that the parties would have to disclose all sizable contributions received, that would be a benefit compared to secret contributions to front groups. Parties also tend to be more responsible than outside groups in terms of their advertising, so the public would be less likely to face as many misleading ads. On the other hand, we should not forget why McCain-Feingold imposed the soft-money ban in the first place: both of the major political parties were selling access (or potentially more) to elected officials to the party’s bankrollers. It is not clear to me that allowing the Democrats and Republicans to take million-dollar donations from those with important legislative business before the Congress and the President would decrease the potential for corruption.

Finally, Bruce did not understand my enforcement argument. Under current federal law, most foreign individuals and entities are precluded from spending or contributing money in connection with U.S. elections. Disclosure ensures that these rules are not being broken, and that foreign entities (including foreign governments) are not buying influence through secret contributions to these new front groups.

I titled my original response to Bruce a “semi-objection” to his semi-disclosure proposal, because I agree that there is little social benefit to disclosure of small contributions and the potential for a chill of small-scale political activity. But when the Chamber of Commerce, one of the most powerful groups in Washington claims it has been chilled, I am not only dubious of the claim’s veracity: I stand with Justice Scalia’s call for groups in the democratic process to have some “political courage” lest our democracy be “doomed.”

Politics as the Friend of Campaign Finance Reform

I would like to pursue Rick Hasen’s remarks on independent spending. He argues that independent spending can be corrupting. Consider the implication of his claim. Some independent spending funds ads calling for the election or defeat of a candidate for federal office. If such spending can corrupt, Congress can regulate it. Do we really want Congress to have such power over a kind of speech that directly threatens its most vulnerable members? Moreover, should we rely on Congress to make the determination that such spending can corrupt the legislature? The incentives for self-dealing by Congress seem especially strong regarding this type of spending. Perhaps Hasen may believe the virtue of members will overcome temptation, and Congress will use newly acquired power over independent spending to root out corruption. I take the side of temptation over virtue in this case and predict Congress would root out challengers. For that reason, I believe the Court’s view that independent spending cannot corrupt should not be thought of as an empirically contingent claim. It should rather be seen as a high wall limiting congressional power over spending on speech. Without that wall, Congress could regulate any criticism that might matter during an election season. With it, vital political speech will be beyond their grasp.

We have largely overlooked Bruce Cain’s proposal that the government collect but not disclose information on spending. This proposal answers Hasen’s concern about detecting corruption.

As noted earlier, Cain’s proposal would be open to the possibility of government abuse. However, if we put aside the possibility of prosecutorial abuse, what would be the danger? Someone leaks information about spending to the press. Government officials note who funds their opponents and retaliate. That danger would also exist with disclosure of independent spending. Even if under Cain’s innovation all major independent spenders were revealed in stories in the New York Times — a rather likely outcome I think — they would be no worse off than they would be if all independent spending were disclosed. Voters, meanwhile, would have some information they might want, whatever I might think about them wanting it.

Meanwhile, as our debate unfolds, politics is moving on. The New York Times reported November 23 that Democrats have begun raising money to support “outside groups” in 2012. Anonymity, the Times says, will make that task easier. If the Democrats do well with such fundraising, partisanship will leave mandated disclosure of independent spending with few friends on Capitol Hill. For now, politics is no longer the friend of campaign finance regulation.

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